Texas law tends to favor landlords over tenants. Notably, unless a lease provides otherwise, a Texas landlord may evict a tenant who is just one day late paying the rent. So if the rent is due March 1 and the tenant forgets to pay until March 2, the landlord is within his legal rights to begin the eviction process.
But there are still certain procedures a landlord must follow, and ways in which a real estate attorney can protect your loss of house and home.
Even if you have fallen behind on the rent, the landlord cannot change the locks and put your stuff out on the street without first obtaining a court order. Such eviction lawsuits are typically referred to as “forcible entry and detainer” or “forcible detainer” actions.
As with any civil lawsuit, the burden is on the plaintiff—in this case the landlord—to prove the tenant failed to pay the rent or otherwise violated the terms of the lease. Even before filing a forcible detainer suit, the landlord must first provide the tenant with a written “notice to vacate.” This notice gives the tenant three days to either vacate the premises or challenge the eviction in court.
“But that’s actually one of the ways you can challenge an eviction,” says Rachel E. Khirallah
, an attorney with Khirallah PLLC in Dallas. “There are very strict requirements for notices to vacate, and it must fully comply.”
If you have received a notice to vacate, the first thing you should do is talk to the landlord. The notice may have been issued in error. And if there is some deficiency on your part, it may be possible to remedy the situation without eviction. If you do reach an agreement, it is a good idea to get it in writing, so the landlord cannot later back out of the deal.
“If the tenant does not move out in three days, then technically on day four the landlord can file suit with the eviction court,” Khirallah adds. “But depending on how contentious the situation is with the landlord and tenant, sometimes a month will pass, sometimes six months, and other times four days. It just depends on the situation.”
Your Day in Court
All eviction cases start in a JP, or justice of the peace, court. If you lose there, you have five days to appeal. “If they appeal to the county court, it can buy you an additional month,” Khirallah says. “And then, if it’s your principle residence, you can appeal to the court of appeals and on up to the Texas Supreme Court, which buys several more months.” Suffice it to say, you have legal recourse to prevent being thrown out on short notice.
“It’s always best to reach out to a lawyer well in advance because of the timing,” she adds. “Typically when a lawsuit is filed, a trial is assigned within 10 or 15 days, so it’s very fast.”
If and when that lawsuit comes, Khirallah suggests you read it carefully, because once again there are requirements for the landlord. Primarily, the suit must make clear what the tenant did to breach their lease. “Nine times out of 10, it’s for non-payment of rent, but it could be for other reasons, and that must be outlined in the lawsuit as well as the notice to vacate.” Whenever payment issues arise, Khirallah says a detailed ledger or other evidence of tracked payments can be a real boon to your defense.
When you go to court, you have a few options to fight eviction: “If it’s for non-payment of rent, you can pay; that’s the biggest defense. If the notice to vacate doesn’t comply, that’s another way to challenge. A third way is if you had a verbal agreement with the landlord. Sometimes judges will entertain those. Or, for example, if you routinely paid late every month and the landlord accepted it, then out of the blue says, ‘I’m not accepting this anymore; I’m evicting you,’ that’s another way to fight it. Unless they explicitly put that in writing as a warning. Any conduct inconsistent with the lease that the landlord accepts can be construed as a waiver or modification of the terms of lease. It can be worth challenging that. We’ve succeeded on claims for that very reason,” Khirallah says.
“It gets you out of the eviction, and then I would urge them to start paying their rent on time. You’re starting fresh.”
When is an Eviction Illegal?
There are circumstances where an eviction is simply illegal as a matter of law. A landlord cannot evict a tenant based on race, sex, national origin, disability or family status. Nor can a landlord use eviction to retaliate against a tenant who files maintenance requests or complaints about the condition of the property. If you are victim of such discrimination or retaliation, you should speak with a qualified attorney right away.